Tag Archives: 1st Amendment

Shut My Mouth! – Update for November 21, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


A federal prison in Texas, like a lot of joints around the country, suffers from frequent power outages. Derrick Brunson (who has since been released) filed an administrative remedy request with prison administrators, expressing his concern over security due to the lights going out all the time and asking that something be done about.

work171121Derrick’s counselor quickly responded to his filing. She complained that he was “just putting more work on her desk.” In response to Derrick’s filing, she wrote him up for threatening her, filing a disciplinary report  known in federal prison parlance as a “shot.”  Derrick was promptly thrown into the SHU – the “Special Housing Unit” – for three weeks while awaiting a hearing in front of a Disciplinary Hearing Officer.

In due course, he was found guilty of the “shot” and was given 7 days in disciplinary segregation and a loss of some good time credits he had previously earned.

shutmouth171121After his 28 days in the SHU, Derrick appealed the finding of guilt, and his appeal fell on the desk of cooler heads. The DHO’s finding was reversed, and the “shot” was expunged. After that, Derrick – who justifiably felt that he had been punished for exercising his 1st Amendment rights in a completely reasonable way – brought a Bivens action against prison staff for a retaliation conspiracy against him for speaking out.

The district court dismissed Derrick’s complaint, holding that his conspiracy claim was “conclusory” and his seven days in seg was too insignificant an injury, “de minimis” as the courts like to say.

shu171121Last week, the 5th Circuit reversed.  The appellate court held the district judge should not have ignored the 21 days Derrick spent in the hole waiting for a hearing. “Taking the 21 days in the SHU and the seven days of disciplinary segregation together,” the Court said, “the alleged retaliatory act lasted at least 28 days, which is certainly… not de minimis.

The 5th found it significant that the shot was later expunged, because that suggested the counselor “lacked any basis for initiating the charge.”  And Derrick’s conspiracy claim was not “conclusory,” the Court said. He alleged that while he was in the SHU, the Captain told him, “You didn’t think I know the lights are an issue? You are not going to make threats.”  A lieutenant then said, “Thanks for telling us how to do our jobs, you want to tell us how to do our jobs things go downhill for you.” 

tapemouth161230When Derrick pointed out that the incident report did not state a violation, the Captain responded, “Well, when I talk to the DHO we’ll see if he can articulate” one. The DHO subsequently changed the charged offense from “threatening” to “refusal to obey an order.” 

The Circuit held that “these facts suffice to state “an agreement to commit an illegal act which resulted in the plaintiff’s injury.”

Brunson v. Nichols, Case No. 14-31350 (5th Cir. Nov. 15, 2017)

– Thomas L. Root


Monday Morning Odds and Ends… – Update for August 28, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Jim and his girlfriend “Sweetie” had a brief fling a few years ago. The allure wore off for Sweetie pretty quickly. Now sick of Jim, she moved a thousand miles away.

persist170828Jim did not take rejection well. He began sending emails, texts and Facebook messages demanding that Sweetie apologize to him for breaking it off.

When she refused, Jim used social media to portray Sweetie as a stripper and prostitute, sending the lies to her new employer and generally spreading the meme to the four corners of the Internet. He told Sweetie and her family he would keep it up until she apologized. Sweetie found it pretty upsetting.

Jim was charged with interstate stalking, which he moved to dismiss on the grounds he had a 1st Amendment right to say whatever he wanted to. Problem is that the law is a bit more complex. It holds that “speech integral to criminal conduct” is not protected by the 1st Amendment.

stalk170828The district court said Jim was committing extortion under 18 USC 875(d), making prosecution of him for interstate stalking permissible despite his asserted 1st Amendment right.

Jim argued that he was not extorting Sweetie, because extortion required that one person threaten to injure the reputation of another with the intent to extort a “thing of value” from that person. Jim said all he wanted was an apology, and, after all, what’s an apology worth, anyway?

Last week, the 8th Circuit upheld his conviction. The Court found that a “thing of value” includes intangibles. The focus, the Court said, is on whether the defendant thinks what is demanded is of value. Here, regardless of how much the apology might really have been worth, it was clearly a “thing of value” to Jim. Thus, he was extorting Sweetie, and his speck thus was integral to a crime.

run170828Meanwhile, a couple hundred miles away from Jim and Sweetie, Rod had struck up an Internet friendship with a 17-year girl in another state. The young girlfriend, whom we’ll simply call “Honeybunch,” lived in an unhappy home environment and was aching to get out of there. Rod sent her money for a bus ticket to come to live with him several states away in Texas (where the romance, he conceded, would have included some “honey” from Honeybunch in the form of consensual and loving sex).

The plan fell apart before Honeybunch could even get as far as the state line. Honeybunch’s family found her missing, and panicked. When they found Rod’s phone number among things Honeybunch had left behind, they called him. Rod counseled the girl by phone to go back home, which she did.

That was not enough for the family, whose panic quickly turned to ire. They convinced the feds to prosecute Rod under the Mann Act, for knowingly transporting someone under 18 in interstate commerce “with intent that the individual engage in… sexual activity for which any person can be charged with a criminal offense.” The age of consent in Honeybunch’s home state was 18, but Rod argued that any sex would have occurred in Texas, where the age of consent was 17. Rod argued the 1st Amendment protected his communications with Honeybunch, because he did not urge her to do anything that would have been a crime where he proposed doing it.

hook170828Last week, the 8th Circuit denied Rod’s 2255 motion, too. Sure, it agreed, the age of consent in Texas is 17 years old. But it found another Texas statute that made it a crime to “employ, authorize, or induce a child younger than 18 years of age to engage in sexual conduct,” including “sexual contact, actual or simulated sexual intercourse.” Rod was right that Texas allowed him to have sex with a 17-year old, but Texas nevertheless made it a crime for him to say or do anything that might convince the 17-year old to have sex with him.

So in Texas, you can have sex with a 17-year old if you just lie there. But if you’re at all interested, you could end up with 10 years in federal prison. Charles Dickens was right: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot’.”

United States v. Hobgood, Case No. 16-3778 (8th Cir., Aug. 22, 2017)

United States v. Goodwin, Case No. 16-1669 (8th Cir., Aug. 25, 2017)


Since the Supreme Court decided in the 2010 Curtis Johnson v. United States case that “force” meant “violent force—that is, force capable of causing physical pain or injury to another person,” circuits have been determining whether force was “violent” by asking whether it was likely to cause pain. Trust the 11th Circuit to upend that logical approach with a 67-page en banc decision holding that everyone is wrong: violent force only needs to be “capable” of causing physical pain. Degree of force no longer matters: only the effect does.

The ruling came last Friday in a reversal of an earlier 3-judge decision that Florida’s felony battery offense is categorically not a violent crime.

violence160110Five dissenting judges point out that Florida felony battery “criminalizes a mere touching that happens to cause great bodily harm… A mere touching is not violent—it does not involve a substantial degree of force. A tap on a jogger’s shoulder that happens to cause the jogger to suffer a concussion is still just a tap.” The dissenters complaint that “the Majority’s decision cannot be reconciled with Curtis Johnson… Johnson explain[s] over the course of several pages that “physical force” refers to a threshold degree of force. But the Majority, reading this lengthy analysis out of Curtis Johnson, creates a new test for “physical force” that disregards degree of force. Although the Supreme Court has cautioned against reading a statement from one of its opinions “in isolation” rather than “alongside” the rest of the opinion, the Majority does exactly that.”

United States v. Vail-Bailon, Case No. 15-1035 (11th Cir., Aug, 25, 2017)



We have written before about the Circuit split on whether a prisoner can use a 28 USC 2241 to challenge his or her guilt when there has been an intervening change in statute. Nine circuits say the saving clause of 28 USC 2255(e) permits it. Two, the 10th and 11th, do not.

A case challenging the 11th Circuit’s ban is awaiting grant of review by the Supreme Court, and some heavyweight legal talent is lining up to urge the issue on the high court. Meanwhile, the 3rd Circuit last week recognized the circuit split while reaffirming its commitment to maintaining 2241 as a safety valve.

violent160620Gary Bruce was involved in a rather ugly robbery/murder years ago in Tennessee. Among other crimes, he was convicted of witness tampering murder, for killing to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” Gary’s jury was not instructed at all about whether it had to find Gary thought the witnesses might communicate with a federal officer. At the time, the law said that “no state of mind need be proved with respect to the circumstance… that the law enforcement officer is an officer or employee of the Federal Government.”

Later, the Supreme Court held that the statute required that the jury find that it was “reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.” This was a new rule of substantive law not dictated by precedent existing at the time Gary was convicted, that narrowed the scope of the statute.

The Court said it permitted a 2241 when two conditions are satisfied: First, a prisoner must assert a “claim of actual innocence’ on the theory that… an intervening Supreme Court decision” has changed the statutory case law in a way that applies retroactively in cases on collateral review. Second, the prisoner must have had no earlier opportunity to challenge the conviction with a 2255 since the intervening Supreme Court decision issued.

Some of the people who say this really are...
‘Actual innocence’ is a standard all circuits apply to 2241 motions…

Some other circuits allowing 2241s have stricter standards, requiring that prisoners show that circuit precedent foreclosed the issue at the time the 2255 was due. Here, Gary’s brother Bob was locked up in a different circuit that had such a rule. The 3rd noted the unfairness of the disparate treatment, noting that while Congress enacted Sec. 2255 to “alleviate the inefficiencies that attend 2241’s… rules, now those difficulties have returned, though in a new form. And so they will remain, at least until Congress or the Supreme Court speaks on the matter.”

Bruce v. Warden, Case No. 14-4284 (3rd Cir., Aug. 22, 2017)

McCarthan v. Goodwill Industries, Petition for Writ of Certiorari, Case No. 17-85 (Supreme Ct., filed July 17, 2017)

– Thomas L. Root


Supreme Court Strikes Down Internet Restrictions for Sex Offenders as Too Broad – Update for June 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


There may be nothing easier for a legislator than to enact laws that punish and restrict people convicted of sex offenses. Who’s going to complain? The sex offenders? Well, sure, but who cares what they think?

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.
Some types of offenses are just too offensive. Today, it’s kiddie porn… tomorrow, it may be jaywalking. That’s why we have laws, to save us from the Flavor of the Day.

It turns out that the Supreme Court cares. North Carolina wanted to be sure sex offenders lacked access to “vulnerable victims,” that is, kids. So far, so good. States may “enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime,” as the Court put it yesterday. But North Carolina – as legislatures are wont to do – went too far.

The Tarheel State passed a law that prevented anyone on the sex offender registry from using any Internet site that permitted minors to have accounts. Offenders like Lester Packingham, who at age 21 had sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he beat a traffic ticket, and took to Facebook to thank God for his triumph. A police officer saw his post, and saw to it that Lester was convicted of a felony for using Facebook.

files170620We confess that we can think of any number of people who should be convicted of felonies for what they post on Facebook, but the North Carolina statute seemed to be killing flies with a sledgehammer. Lester did, too, and took his lament to the Supreme Court. Yesterday, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

Justice Kennedy, in his usual sweeping style, wrote for a unanimous court that the North Carolina statute went too far, , because it stifles “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he argued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Justice Kennedy wrote,

Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers ‘relatively unlimited, low-cost capacity for communication of all kinds,’ to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet’s forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

The Justice took a direct swipe at legislators who think that no restriction is too harsh where sex offenders are concerned: “Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims. However, the assertion of a valid governmental interest cannot, in every context, be insulated from all constitutional protections.”

facebook170620Justice Samuel Alito, in a concurring opinion that was joined by Chief Justice John Roberts and Justice Clarence Thomas, agreed with Kennedy – to a point. Justice Alito acknowledged that states have an interest in protecting children from abuse, writing that  “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But, he noted, the North Carolina law under which Packingham was convicted must ultimately be deemed unconstitutional because it also bars sex offenders from gaining access to “a large number of websites” – including, but not limited to, Amazon, The Washington Post, and WebMD – “that are most unlikely to facilitate the commission of a sex crime against a child.”

felonies170620Having said that, however, Alito disputed any suggestion that cyberspace is “the 21st century equivalent of public streets and parks” over which states had “little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Arguing that “there are important differences between cyberspace and the physical world,” Alito disapproved of what he described as Kennedy’s “loose rhetoric” and “undisciplined dicta” in the majority opinion.

The opinion will provide considerable support to federal prisoners whose terms of supervised release contain sweeping limitations on Internet access.

The Supreme Court has 12 cases yet to decide before the end of next week, including

Sessions v. Dimaya (formerly Lynch v. Dimaya) (does Johnson apply to 18 USC 16(b)?)

Lee v. United States (ineffective assistance of counsel);

Turner v. United States (Brady evidence case);

Weaver v. Massachusetts (ineffective assistance of counsel);

Maslenjak v. US (loss of citizenship over immaterial false statement); and

Davila v. Davis (does ineffective assistance of habeas counsel overcome defaulted ineffective assistance of appellate counsel claims?)

The Supreme Court will issue more opinions on Thursday, June 22, 2017

Packingham v. North Carolina, Case No. 15-1194, reversed 8-0, 3 concurrences

– Thomas L. Root


A Trio of Significant Decisions – Update for February 27, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.

kidnap170227Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.

Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”

The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”

Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”

United States v. Jenkins, Case No. 14-2898 (7th Cir., Feb. 24, 2017)


For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.

Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.

Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.

But even an average lawyer should know how to count...
But even an average lawyer should know how to count…

While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”

The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.

The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.

lawyermistake170227The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”

The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.

Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).

Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.

Cadet v. State of Florida DOC, Case No. 12-14518 (11th Cir., Feb. 24, 2017)


In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.

hearme170227The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.

The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.

The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”

Heyer v. Bureau of Prisons, Case No. 15-6826 (4th Cir., Feb. 23, 2017)

– Thomas L. Root